Tegan Osborne-Brown
Posted on 5 Oct 2021

Blurred lines: a new Court of Appeal decision explores the nuances between discrimination on the basis of religion and sexual orientation in the Charity sector

R (Cornerstone (North East) Adoption and Fostering Services Ltd v Office for Standards in Education, Children's Services and Skills (Ofsted) [2021] EWCA Civ 1390

What constitutes direct and indirect discrimination in the eyes of the law?

Discrimination is covered by the Equality Act 2010 (EqA) and the European Convention on Human Rights (ECHR). Direct discrimination occurs where, because of a protected characteristic, A treats B less favourably than A treats or would treat others. The protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Those claiming direct discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different (except in cases of pregnancy). The court will consider the conscious and subconscious processes which led A to take the course of action against B and whether the protected characteristic played a significant part in the outcome.

In contrast, indirect discrimination occurs where:

  • A applies to B a provision, criterion or practice (PCP);
  • B has a protected characteristic;
  • A applies or would apply the PCP to persons who do not share B's protected characteristic;
  • The PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage compared to others;
  • The PCP puts or would put B to the disadvantage; and
  • A cannot show the PCP is a proportionate means of achieving a legitimate aim.

This covers situations where acts and policies which, whilst not intended to treat anyone less favourably, have the effect of putting a group of people with a protected characteristic at a disadvantage.

What are the facts of the Cornerstone case?

Cornerstone is an Evangelical Christian independent fostering agency. Its recruitment policy required that foster carers were Evangelical Christians who refrained from homosexual behaviour and "recognise that God's gift of sexual intercourse is to be enjoyed exclusively within Christian marriage". Ofsted, which regulates Cornerstone, deemed this policy to be a violation of the EqA and the ECHR.

What did the Courts decide?

Cornerstone applied for a review of Ofsted's decision, with the logic that it was entitled to discriminate against people who are not evangelical Christians under the EqA and, therefore, it was entitled to discriminate against homosexuals. However, this argument failed, with the High Court maintaining that Cornerstone was a type of public authority and therefore subject to the EqA and the ECHR. It was found that Cornerstone's policy directly and indirectly discriminated on grounds of sexual orientation and could not be justified as a proportionate means of achieving a legitimate aim.

Cornerstone appealed this decision to the Court of Appeal which found that the policy was clearly directly and indirectly discriminatory. The Court of Appeal also found that the discrimination could not be justified. However, the Court recognised the difficult collision between the protected characteristics of religion and sexual orientation in this case.

Both public and private sector employers should review policies to ensure that they do not directly or inadvertently discriminate against any protected groups. Where the policies may be discriminatory there is a high standard to which employers must prove this is a proportionate means of achieving a legitimate aim, and there must be credible evidence of such.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Tegan Osborne-Brown or Rachael Lloyd to discuss any issues you are facing.